Feds, not states, have last word on death penalty

In this courtroom sketch, Boston Marathon bomber Dzhokhar Tsarnaev, center, stands with his defense attorneys as a death by lethal injection sentence is read at the Moakley Federal court house in the penalty phase of his trial in Boston, Friday, May 15, 2015. The federal jury ruled that the 21-year-old Tsarnaev should be sentenced to death for his role in the deadly 2013 attack. (Jane Flavell Collins via AP) less

In this courtroom sketch, Boston Marathon bomber Dzhokhar Tsarnaev, center, stands with his defense attorneys as a death by lethal injection sentence is read at the Moakley Federal court house in the penalty ... more

Photo: Jane Flavell Collins, Associated Press

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Anti-death penalty campaigners stage a demonstration and march outside the Federal Bulding in Los Angeles in this September 28, 2010 file photo. California voters will also be asked if it is time to repeal the state's death penalty. There are currently 724 people on the state's death row but California has only executed 13 people since the death penalty was reinstated in 1976. Some 17 states have already abolished the death penalty. less

Anti-death penalty campaigners stage a demonstration and march outside the Federal Bulding in Los Angeles in this September 28, 2010 file photo. California voters will also be asked if it is time to repeal the ... more

Photo: Mark Ralston, AFP/Getty Images

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The execution chamber at the Oklahoma State Penitentiary in McAlester, Okla., was the scene of a bungled execution that has led to attorneys for 21 Death Row inmates to halt executions in the state.
File - This Oct. 9, 2014 file photo, shows an arm restraint on the gurney in the the execution chamber at the Oklahoma State Penitentiary in McAlester, Okla. Attorneys for 21 death row inmates who will be in a federal court this week challenging Oklahoma's lethal injection procedure outlined their strategy in court documents that reveal grisly new details in the botched execution of an inmate in April, 2014. (AP Photo/Sue Ogrocki, File) less

The execution chamber at the Oklahoma State Penitentiary in McAlester, Okla., was the scene of a bungled execution that has led to attorneys for 21 Death Row inmates to halt executions in the state.
File - ... more

Photo: Sue Ogrocki / Associated Press

Feds, not states, have last word on death penalty

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California voters came within a few percentage points of repealing the state’s death penalty law in 2012 and may consider the issue again next year. Meanwhile, a federal appeals court is preparing to review a judge’s ruling that declared California’s death penalty unconstitutional because of decades-long delays, for which the state was found largely responsible, and arbitrary punishments. Findings by another judge of numerous flaws in the state’s lethal injection procedures have halted executions at San Quentin since 2006.

Capital punishment could be officially removed from California’s law books in the next year or two, but its demise would be no guarantee that death penalty trials will end in the state. The latest example comes from Massachusetts.

Thirty-one years after the Bay State repealed its death penalty law, a federal jury in Boston decreed a death sentence May 15 for Dzhokhar Tsarnaev for the 2013 Boston Marathon bombing that killed three people. A substantial majority of the area’s residents disapprove of capital punishment, but as in all death penalty cases, prospective jurors were screened to remove its opponents.

“It means that the jury that gets empaneled is incapable of reflecting the views of the community,” said Robert Dunham, executive director of the Death Penalty Information Center, which is critical of the way capital punishment is carried out in the United States but takes no formal position on the death penalty itself.

Dunham pointed to recent comments by retired Supreme Court Justice John Paul Stevens, who said jury selection in cases like the Boston bombing was “one reason that the death penalty is much more unfair than we thought it was” in 1976, when the court upheld state death penalty laws four years after declaring earlier versions unconstitutional.

But Robert Weisberg, a Stanford criminal law professor, said such disparities are the consequence of having national laws that sometimes conflict with state statutes, in areas that range from medical marijuana to school segregation to capital punishment.

“It’s a little late in the game to complain that people in a state shouldn’t be subject to federal laws that they don’t like,” Weisberg said.

The 1994 federal death penalty law covers virtually all murders that are considered capital crimes under state laws. But for the most part, Weisberg said, federal prosecutors have sought capital charges in cases that had a “distinct federal interest” — the terrorism of the Boston bombing and the 1995 bombing of the Oklahoma City federal building, killings of government employees and multistate crimes.

Tenuous U.S. links

Even so, some federal Death Row inmates were sentenced for crimes that had no obvious federal connection, such as a drug-related murder in Virginia in 1993, the murders of two children by drug dealers in Florida in 2006, and the 1993 slayings of three drug traffickers by another dealer who was executed in 2001.

Two condemned federal prisoners are from California: Jurjan Kadamovas and Iovari Mikhel, sentenced to death in 2007 for the ransom kidnappings and murders of four wealthy Russian immigrants and an American businessman in Southern California in 2001 and 2002.

The federal government can enforce its law in every state, including those that have abolished the death penalty — 19 states plus Washington, D.C., and Puerto Rico.

Out of 62 federal Death Row inmates, six — two from Massachusetts and one each from Michigan, Vermont, North Dakota and New York — committed their crimes in non-death-penalty states.

Apart from Tsarnaev, whose capital prosecution was approved by President Obama’s then-attorney general, Eric Holder, the other five were sentenced to death under President George W. Bush’s administration. That’s no coincidence, said Rory Little, a law professor at UC Hastings in San Francisco who served on the death penalty review committee for President Bill Clinton’s attorney general, Janet Reno, in 1996-97.

Clinton-era law

Clinton signed the 1994 law, which expanded the federal death penalty enacted in a narrower form in 1988. But Little said Reno’s Justice Department adopted a written guideline in 1996 saying it would not consider the absence of a state death penalty law when deciding whether to seek a federal death sentence.

Bush’s attorney general, John Ashcroft, repealed that guideline in 2002 and made a point of approving capital prosecutions in some cases because states lacked their own death penalty laws, Little said.

Obama’s Justice Department has not reinstated the Clinton-era guideline. Its formal policies include language saying that crimes should be treated the same no matter where they occurred, and that the Justice Department should consider whether a state is willing and able to “obtain an appropriate punishment” — words that seem to indicate a willingness to seek the death penalty when a state can’t do so on its own.

But Little said the Obama administration has largely deferred to states’ policies.

Justice Department spokesman Peter Carr said the agency’s prosecutors “cannot, and do not, consider whether a particular state supports capital punishment or has abolished capital punishment” in deciding whether to seek the death penalty.